Written by Workforce chief reporter Paul Karp.
The Fair Work Commission has refused to issue stop bullying orders despite finding a construction site manager was victim of inappropriate behaviour including a poster likening him to a dwarf, an email threatening to stop his pay and a dare to engage in an arm wrestle.
Commissioner Julius Roe held the inappropriate conduct was committed by various individuals who were not acting “in concert” and he was therefore not satisfied it constituted “repeated unreasonable behaviour”.
The cmr also dismissed many of the manager’s claims, including that a co-worker trapped him in a roof and that he was victimised by unfairly targeted safety complaints.
Site manager Mr Hammon sought stop bullying orders against his employer Metricon Homes Pty Ltd, his alleged chief antagonist Matt Brand and other managers.
Hammon complained that Metricon failed to raise his pay in line with his expectations because of a negative performance evaluation by Brand.
He complained in February and March 2015 Brand and others unfairly targeted his sites for OHS inspections, resulting in their closure and him receiving a final warning.
Other incidents he alleged included:
* someone placed a picture of him as a dwarf as part of a ‘look-alike’ board in the office;
* a site manager called him a “lackey”; and
* a manager “threatened or insulted” him at the 2013 end of year function and then at the 2014 function challenged him to an arm wrestle.
Cmr rejects ‘roof trap’ and safety inspection discrimination claims
Cmr Roe found Hammon a sincere witness but said he did not have a “clear and accurate memory of events … perhaps in part because of his distress”.
Cmr Roe rejected Hammon’s claims:
* Brand had trapped him in a roof cavity, noting he had not raised it with HR earlier even though it would “constitute seriously unreasonable behaviour”;
* he was discriminated against in performance reviews; and
* he was targeted by site visits in February 2015 which identified safety issues leading to a first and final warning.
Cmr Roe said it was “possible” that other sites had similar safety breaches, but added it “would not be reasonable to assume Metricon can identify and act on every possible safety breach”.
He described it as “unusual” that only Hammon’s sites had been closed this year, but said this did not necessarily mean he was “targeted unreasonably”.
The safety breaches on Hammon’s sites were not minor and closing them was therefore reasonable, the cmr concluded.
Manager threatened to cut alleged victim’s pay
The cmr upheld Hammon’s complaints that:
* one manager called him a “lackey”;
* Brand should have put a stop to the ‘look-alike’ board, but the cmr found the board was not “directed at” Hammon;
* his high workload and publication of performance data caused him stress, with the cmr expressing “doubts” that performance management of Hammon was conducted in a reasonable manner;
* one manager inappropriately threatened to tell payroll “not to pay” Hammon “so he knows how it feels” because of Hammon’s late completion of invoicing paperwork; and
* another site manager challenged Hammon to an arm wrestle in December 2014, and a manager inappropriately failed to take the matter further because Hammon refused to make a formal complaint.
Cmr Roe concluded inappropriate workplace behaviour posed a continuing risk to Hammon’s health and safety, as he suffered from ‘adjustment disorder’.
But the cmr said the proven incidents were “not the major issues” Hammon had raised. The alleged chief antagonist, Brand, and another manager were only responsible for one incident each and were not acting in concert.
“Considering the four substantiated matters as a whole I am not, on balance, satisfied that the test of ‘repeated unreasonable behaviour while at work’ is met.” Cmr Roe held he was therefore unable to make orders.
(Hammon v Metricon Homes Pty Ltd & Ors , FWC 5565, 14/08/15)
(This story first ran in Workforce Daily, August 18, 2015)
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